Asstt.Commissioner of Income Tax, Nadiad V. Shri Prahladray M. Shah, Kheda

ITA 1997/AHD/2015

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4148 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 1998-1999
• Appeal Filed On: 07-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIDYUT TRIVEDI
• Assessee Lawyers: G C PIPARA
• Section: 271(1)(c); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) ITA. NOS: 1997 TO 2008/AHD/2015 (ASSESSMENT YEARS: 1998-99 TO 2003-04 ) THE ASSTT. COMMISSIONER OF INCOME-TAX, KHEDA CIRCLE, NADIAD-387002 V/S SHRI PRAHLADRAY M SHAH, 23, SHYAMKUNJ SOCIETY, B/H. VAISHALI CINEMA, NADIAD, DISTT-KHEDA (APPELLANT) (RESPONDENT) PAN: AGTPS8575P APPELLANT BY : SHRI VIDYUT TRIVEDI, SR. D.R. RESPONDENT BY : SHRI G. C. PIPARA, A.R. ( )/ ORDER DATE OF HEARING : 11 -02-202 0 DATE OF PRONOUNCEMENT : 21 -02-2020 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THESE 12 APPEALS HAVE BEEN FILED BY THE REVENUE AGA INST PART RELIEF GIVEN BY THE LD. CIT(A). SINCE GROUNDS ARE COMMON AND ASSESSMENT YEARS AND AMOUNTS ARE ITA NOS. 199 7 TO 2008/AHD/2015 . A.YS. 1998- 99 TO 2003-04 2 DIFFERENT FOR THE SAKE OF BREVITY, WE WOULD LIKE TO DISPOSE OF ALL 12 APPEALS BY WAY OF A COMMON ORDER. 2. IN A LEAD CASE WE WOULD LIKE TO TAKE UP FIRST ITA N O. 1997/AHD/2015 FOR A.Y. 1998-99, REVENUE HAS TAKEN FOLLOWING GROUNDS OF APP EAL: 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE, THE LD. CIT (A) ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE TH E ADDITION ON ACCOUNT OF NON OPERATIVE ADVANCE OF RS. 32,77,200/- WITHOUT APPREC IATING THE FACTS THAT IN ABSENCE OF ANY DETAILS FILED BY THE ASSESSEE, THE A .O. HAD NO OPTION BUT TO COME TO THE CONCLUSION OF ADDING THE SAME, SINCE CHEQUE RETURNED /DISHONOURED APPEARING IN BANK ACCOUNTS OF THE ASSESSEE REPRESEN TED NON OPERATIVE ADVANCES IN WHICH CASES U/S. 138 OF THE N.I. ACT HAS BEEN FI LED AND IS DISTINCT FROM THE ADDITION MADE ON THE BASIS OF CHEQUE CREDITS REPRES ENTING OPERATIVE ADVANCES I.E. ADVANCES IN WHICH CASE U/S. 138 OF THE N.I. ACT HAS NOT BEEN FILED.' 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEN D OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 3. FACTS OF THE CASE ARE THAT ASSESSEE IS AN INDIVIDUA L AND DERIVING INCOME FROM BUSINESS AND FROM OTHER SOURCES. AND ALSO ENGAGED I N THE BUSINESS OF MONEY LENDING AND WAS RUNNING AND OPERATING A PROPRIETARY CONCERN IN THE NAME OF VISHNU BHANDAR. THE ASSESSEE HAD FILED COMPLAINTS U/S. 138 OF THE NEGOTIABLE INSTRUMENTS ACT AGAINST 14 PERSONS IN WH ICH IT WAS NOTICED BY THE DEPARTMENT THAT ASSESSEE HAS ADVANCED TOTALING TO R S. 78,90,000/- DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 1998- 99 TO 2002-2003. AND STATEMENT WAS RECORDED BY THE INVESTIGATION WING OF THE DEPARTMENT. AND ON THE BASIS OF THE DETAILS OF THE CHEQUE AMOUNT AND S TATEMENT OF ASSESSEE. ADDITION WAS MADE BY THE LD. A.O. ON ACCOUNT OF NON OPERATIVE ADVANCES. ITA NOS. 199 7 TO 2008/AHD/2015 . A.YS. 1998- 99 TO 2003-04 3 4. THEREAFTER ASSESSEE PREFERRED FIRST STATUTORY APPEA L BEFORE THE LD. CIT(A) WHO GRANTED RELIEF TO THE ASSESSEE VIDE ORDER NO. CAB/I V-N-178/08-09 ORDER DATED 30 TH MARCH, 2010 WITH FOLLOWING OBSERVATION: 3.2.1. NOW I TAKE UP THE ADDITION IN RESPECT OF 'NO N OPERATIVE FINANCE'. THIS ADDITION HAS BEEN MADE IN RESPECT OF BOUNCED OR DIS HONORED CHEQUES DEPOSITED IN THE BANK ACCOUNTS) AS PER WORKING TABULATED ON P AGE 123 OF THE ASSESSMENT ORDER FOR A.Y.1998-99. THE PRINCIPLE OR THE METHOD FOLLOWED BY THE ASSESSING OFFICER FOR MAKING THIS ADDITION IS AS PER PARA II( D) ON PAGE 122 OF ASSESSMENT ORDER. AS PER ASSESSING OFFICER, WHATEVER CHEQUES W ERE SHOWN AS RETURNED IN THE FIVE UNDISCLOSED BANK ACCOUNTS, THE SAME REPRESENTE D ADVANCES BY THE APPELLANT DURING A.YS. 1998-99 TO 2002-03. ASSESSING OFFICER TOTALLED UP CHEQUE RETUR N ENTRIES IN THE FIVE BANK ACCOUNTS AS PER TABLE ON P AGE 123 OF ASSESSMENT ORDER AND MADE THE ADDITIONS IN A.Y.1998-99 TO 2002-03 AC CORDINGLY. SINCE CASES U/S.138 OF NEGOTIABLE INSTRUMENTS ACT HAD BEEN FILE D ON THE BASIS OF CHEQUE BOUNCE ENTRIES IN THE TWO DISCLOSED ACCOUNTS ALSO, ASSESSING OFFICER ESTIMATED THE AMOUNTS ADVANCED IN RESPECT OF WHICH CASES. FOR A.Y. 1998-99, RS.2,50,000/- WAS ESTIMATED AND ADDED TO APPELLANT'S INCOME OVER AND ABOVE AMOUNT IN TABLE ON PAGE 123. APPELLANT'S FIRST CONTENTION IS THAT A LL THE ADVANCES, IN RESPECT OF WHICH CASES U/S. 138 WERE FILED HAD BEEN GIVEN BY C HEQUE ONLY, SINCE CASES U/S. 138 OF NEGOTIABLE INSTRUMENTS ACT CANNOT BE FILED O THERWISE. THIS CONTENTION IS NOT TENABLE SINCE VIOLATION OF SECTION 138 OF NEGOT IABLE INSTRUMENTS ACT IS ONLY REGARDING BOUNCING OR DISHONOURING OF CHEQUE PRESEN TED OR DEPOSITED. FOR FILING A CASE U/S. 138, THERE IS NO CONDITION ABOUT THERE BEING AN ADVANCE IN THE FIRST PLACE OR IT BEING BY CHEQUE OR OTHERWISE. APPELLANT 'S NEXT CONTENTION IS THAT THE SAID FINANCE WAS OUT OF THE SAME BANK ACCOUNTS, IN RESPECT OF WHICH ADDITION OF OPERATIVE FINANCE HAS BEEN MADE ALREADY AND HENCE N O SEPARATE ADDITION IS WARRANTED. THE BOUNCED CHEQUE IS INDICATIVE OF FINA NCE BY THE APPELLANT EXTENDED TO THE ISSUER OF THE CHEQUE IN THE PAST AN D THE AMOUNT FILLED IN A BOUNCED CHEQUE COULD BE WITH OR WITHOUT INTEREST, I .E. PRINCIPAL OR PRINCIPAL PLUS INTEREST. AS PER APPELLANT, INFLATED AMOUNTS WERE FILLED IN THE BLANK CHEQUES OBTAINED AT THE TIME OF GIVING FINANCE AND THESE DO NOT SHOW THE ORIGINAL AMOUNT ADVANCED IN THE FIRST PLACE. THE YEAR IN WHICH MONE Y WAS ADVANCED IS ALSO NOT KNOWN IN RESPECT OF A BOUNCED CHEQUE ENTRY. CHEQUE RETURN OR BOUNCED CHEQUES ENTRIES, BY THEMSELVES CANNOT BE ADDED AS APPELLANT 'S INCOME, AS THEY DO NOT REPRESENT RECEIPT OF MONEY. THE ADDITION, IF AT ALL COULD ONLY BE IN RESPECT OF ITA NOS. 199 7 TO 2008/AHD/2015 . A.YS. 1998- 99 TO 2003-04 4 MONEY ORIGINALLY ADVANCED OUTSIDE THE BOOKS OF ACCO UNTS AND IN THE YEAR WHEN MONEY WAS ADVANCED. IF YEAR OF ADVANCEMENT OF MONEY IS EARLIER THAN F.Y.1997- 98, NO ADDITION CAN BE MADE IN A.Y.1998-99. ON THE OTHER HAND, IF THE MONEY WAS ADVANCED IN F.Y.1997-98, SINCE ADDITION HAS ALREADY BEEN MADE UNDER HEAD 'OPERATIVE FINANCE' ON THE BASIS OF CHEQUE CREDITS I N THE BANK ACCOUNTS, SOURCE OF ADVANCE IS EXPLAINED AND NO SEPARATE ADDITION FOR C HEQUE RETURNS IS REQUIRED TO BE MADE. IT IS HELD THAT NO ADDITION IS REQUIRED TO BE MADE TO APPELLANT'S INCOME ON THE BASIS OF CHEQUE RETURN ENTRIES IN THE UNDISC LOSED BANK ACCOUNTS. ADDITION UNDER THE HEAD 'NON OPERATIVE FINANCE' IS DELETED T O THE EXTENT OF RS.32,77,200/-. 3.2.1.1. APPELLANT'S ONLY SUBMISSION REGARDING ADDI TION OF RS.2,50,000/- UNDER THE HEAD 'NON OPERATIVE FINANCE' IN RESPECT OF REMA INING TWO BANK ACCOUNTS IS THAT THE TRANSACTIONS ARE REFLECTED IN BOOKS OF VIS HNU BHANDAR. SINCE BOOKS OF ACCOUNTS WERE NOT. PRODUCED BEFORE THE A.O., THIS C ONTENTION IS NOT ACCEPTABLE. ADDITION OF RS.2,50,000/- IS CONFIRMED 4, ADDITION IN RESPECT OF INTEREST ACCRUED IS NOW T AKEN UP. THE ASSESSING OFFICER MADE THIS ADDITION AS PER CASH BALANCES WOR KED OUT FOR A.YRS.1998-99 TO 2002-03 AND BY APPLYING INTEREST RATE OF 15% ON THE SAME. THE CASH BALANCE APPEARS TO HAVE BEEN WORKED OUT BY SUBTRACTING TOTA L CASH DEPOSITS IN THE UNDISCLOSED BANK ACCOUNTS FROM TOTAL CASH WITHDRAWN FROM THESE UNDISCLOSED BANK ACCOUNTS! APPELLANT HAS POINTED OUT THAT THERE ARE ARITHMETICAL ERRORS IN ASSESSING OFFICER'S WORKING APPELLANTS CONTENTION IS THAT CHARGING INTEREST FOR THE FULL YEAR ON THE CASH AVAILABLE FOR FURTHER FIN ANCE IS NOT JUSTIFIED AND IT SHOULD BE CHARGED FOR ONLY 6 MONTHS. FURTHER, AS PER APPEL LANT, THE RATE OF INTEREST CHARGED SHOULD BE 9%. I AM IN AGREEMENT WITH THE AP PELLANT THAT THE INTEREST CANNOT BE WORKED OUT FOR THE FULL YEAR ON THE BALAN CE FIGURE./IN THE ABSENCE OF INFORMATION ABOUT DATES OF MAKING ADVANCES, IT WOUL D BE FAIR TO COMPUTE INTEREST ON PERIOD OF SIX MONTHS. ASSESSING OFFICER IS DIREC TED TO WORK OUT INTEREST FOR A PERIOD OF 6 MONTHS @ 15% ON THE CASH BALANCE FIGURE AS PER TABLE ON PAGE 129 OF ASSESSMENT ORDER, DULY RECTIFIED AFTER VERIFYING THE ARITHMETICAL ERRORS POINTED OUT BY THE APPELLANT. 5. LAST ADDITION MADE TO APPELLANT'S INCOME WAS IN RESPECT OF FDR OF RS.1,75,000/- WITH NADIAD PEOPLES CO-OPERATIVE BANK LTD. APPELLANT'S CONTENTION IS THAT THE FDR IS IN THE NAME OF HIS WIFE, SMT. YA SHODADEVI P. SHAH AND HAS ALREADY BEEN CONSIDERED FOR ADDITION IN HER HANDS. 5.1. I HAVE CONSIDERED THE MATTER. ON PAGE 13 OF AS SESSMENT ORDER IN THE CASE OF SMT. YASHODADEVI P. SHAH FOR A.Y.1998-99, DETAIL S OF FOR OF RS.1,75,000/- WITH NADIAD MERCANTILE CO-OPERATIVE BANK LTD. ARE RECORD ED, WHEREAS DETAILS OF FOR HELD BY APPELLANT WITH HIS WIFE JOINTLY OF RS.1,75, 000/- WITH NADIAD MERCANTILE ITA NOS. 199 7 TO 2008/AHD/2015 . A.YS. 1998- 99 TO 2003-04 5 CO-OPERATIVE BANK LTD., WHICH IS THE SUBJECT MATTER OF ADDITION ARE AVAILABLE ON PAGE 32 OF ASSESSMENT FOR A.Y. 1998-99 IN APPELLANT 'S CASE. THE DESCRIPTION OF TWO FDRS DOES NOT MATCH EXCEPT FOR THE AMOUNT. WHIL E FIRST FDR IN THE SINGLE NAME OF APPELLANT'S WIFE NUMBERED SAM 115, THE SECO ND FDR IN THE JOINT NAME OF APPELLANT AND HIS WIFE NUMBERED 10258. THUS, THI S CONTENTION OF THE APPELLANT IS NOT ACCEPTABLE. APPELLANT HAS NOT BEEN ABLE TO S ATISFACTORILY EXPLAIN SOURCE OF INVESTMENT IN THE SAID FDR MADE DURING THE PREVIOUS YEAR AND ADDITION IS THEREFORE, JUSTIFIED. APPELLANT'S CONTENTION REGARD ING BENEFIT OF TELESCOPING AGAINST ADDITION OF 'OPERATIVE FINANCE' COULD BE CO NSIDERED, IF APPELLANT HAD DEMONSTRATED THAT FDR WAS MADE OUT OF THE FOUR UNDI SCLOSED BANK ACCOUNTS. THIS HAS NOT BEEN DONE. ADDITION OF RS.1,75,000/- I S CONFIRMED. 6. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. 5. THEREAFTER ASSESSEE PREFERRED APPEAL BEFORE THE ITA T WHEREIN APPEAL OF THE ASSESSEE WERE ALLOWED BY THE ITAT FOR STATISTICAL P URPOSE WITH THE DIRECTION THAT LD. CIT(A) WILL PASS AN ORDER AFTER CONSIDERIN G THE REMAND REPORT AND OTHER DOCUMENTS RELATING TO THE ADDITION. THEREAFTER, LD . CIT(A) GRANTED PART RELIEF TO THE ASSESSEE AND NON OPERATIVE FINANCE OF RS. 32772 00/- WAS DELETED BY THE LD. CIT(A) ON THE REASONS THAT I DO NOT FIND ANY REASON TO DEVIATE FROM THE APPELLANT ORDER PASSED BY THE LD. CIT(A)-IV, BARODA ON 30.03.2010 AGAINST THAT ORDER REVENUE DID NOT PREFERRED ANY APPEAL MEANING THEREBY ORDER OF LD. CIT(A) DATED 30.03.2010 ATTAINED THE FINALITY. AND ON THE BASIS OF CONSISTENCY, LD. CIT(A) GRANTED RELIEF TO THE ASSESSEE. IN THE R ESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. 6. NOW WE COME TO ITA NO. 1998/AHD/2015 FOR A.Y. 1998- 99, WHEREIN REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. 'WHETHER ON THE FACTS AND IN THE CIR CUMSTANCES OF THE CASE, THE LD. CIT (A) ERRED IN LAW AND ON FACTS IN DELETING PEN ALTY U/S. 271(L)(C) OF THE ACT ON THE ISSUE OF ADDITION REPRESENTING NON OPERATIVE AD VANCE MADE BY THE ITA NOS. 199 7 TO 2008/AHD/2015 . A.YS. 1998- 99 TO 2003-04 6 A.O., WITHOUT APPRECIATING THE FINDING IN THE MATTE R RECORDED BY THE A.O. IN THE ASSESSMENT ORDER AND IN ORDER U/S. 271(L)(C) OF THE ACT.' 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 7. REVENUE HAS ALSO CHALLENGED THE PENALTY IN ITA NO. 1998/AHD/2015 FOR A.Y. 1998-99. SINCE RELIEF HAD ALREADY BEEN GRANTED BY I TAT IN ITA NO. 1997/AHD/2015 IN QUANTUM PROCEEDING THUS NOTHING RE MAINS AGAINST THE ASSESSEE. THEREFORE PENALTY AGAINST THE ASSESSEE IS DELETED. THUS, APPEAL OF THE REVENUE IS DISMISSED. . 8. NOW WE COME TO ITA NO. 1999/AHD/2015 FOR A.Y. 1999- 2000, WHEREIN REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE, THE LD. CIT (A) ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE TH E ADDITION ON ACCOUNT OF NON OPERATIVE ADVANCE OF RS. 24,25,000/- WITHOUT APPREC IATING THE FACTS THAT IN ABSENCE OF ANY DETAILS FILED BY THE ASSESSEE, THE A .O. HAD NO OPTION BUT TO COME TO THE CONCLUSION OF ADDING THE SAME, SINCE CHEQUE RETURNED /DISHONOURED APPEARING IN BANK ACCOUNTS OF THE ASSESSEE REPRESEN TED NON OPERATIVE ADVANCES IN WHICH CASES U/S. 138 OF THE N.I. ACT HAS BEEN FI LED AND IS DISTINCT FROM THE ADDITION MADE ON THE BASIS OF CHEQUE CREDITS REPRES ENTING OPERATIVE ADVANCES I.E. ADVANCES IN WHICH CASE U/S. 138 OF THE N.I. ACT HAS NOT BEEN FILED.' 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEN D OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 9. SINCE IN SIMILAR FACTS AND CIRCUMSTANCES OF THE CAS E, WE HAVE DISMISSED THE APPEAL OF THE REVENUE IN CONNECTED ITA NO. 1997/AHD /2015, THUS IN PARITY WITH THE SAID ORDER, APPEAL OF THE REVENUE IS DISMI SSED. ITA NOS. 199 7 TO 2008/AHD/2015 . A.YS. 1998- 99 TO 2003-04 7 10. NOW WE COME TO ITA NO. 2000/AHD/2015 FOR A.Y. 1999- 2000, WHEREIN REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. 'WHETHER ON THE FACTS AND IN THE CIR CUMSTANCES OF THE CASE, THE LD. CIT (A) ERRED IN LAW AND ON FACTS IN DELETING PEN ALTY U/S. 271(L)(C) OF THE ACT ON THE ISSUE OF ADDITION REPRESENTING NON OPERATIVE AD VANCE MADE BY THE A.O., WITHOUT APPRECIATING THE FINDING IN THE MATTE R RECORDED BY THE A.O. IN THE ASSESSMENT ORDER AND IN ORDER U/S. 271(L)(C) OF THE ACT.' 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 11. SINCE IN SIMILAR FACTS AND CIRCUMSTANCES IN QUANTUM PROCEEDING, RELIEF WAS GRANTED BY AS IN ITA NO. 1997/AHD/2015 AND WE HAVE DISMISSED APPEAL OF THE REVENUE. THEREFORE, PENALTY PROCEEDING ARISING OUT OF THE DISMISSED APPEAL IS NOT SUSTAINABLE. THEREFORE, APPEAL FOR PENALTY O F THE REVENUE U/S. 271(1)(C) IS DISMISSED. 12. NOW WE COME TO ITA NO. 2001/AHD/2015 FOR A.Y. 2000- 2001, WHEREIN REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE, THE LD. CIT (A) ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE TH E ADDITION ON ACCOUNT OF NON OPERATIVE ADVANCE OF RS. 29,05,600/- WITHOUT APPREC IATING THE FACTS THAT IN ABSENCE OF ANY DETAILS FILED BY THE ASSESSEE, THE A .O. HAD NO OPTION BUT TO COME TO THE CONCLUSION OF ADDING THE SAME, SINCE CHEQUE RETURNED /DISHONOURED APPEARING IN BANK ACCOUNTS OF THE ASSESSEE REPRESEN TED NON OPERATIVE ADVANCES IN WHICH CASES U/S. 138 OF THE N.I. ACT HAS BEEN FI LED AND IS DISTINCT FROM THE ADDITION MADE ON THE BASIS OF CHEQUE CREDITS REPRES ENTING OPERATIVE ADVANCES I.E. ADVANCES IN WHICH CASE U/S. 138 OF THE N.I. ACT HAS NOT BEEN FILED.' ITA NOS. 199 7 TO 2008/AHD/2015 . A.YS. 1998- 99 TO 2003-04 8 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEN D OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 13. SINCE IN SIMILAR FACTS AND CIRCUMSTANCES OF THE CAS E, WE HAVE DISMISSED THE APPEAL OF THE REVENUE IN CONNECTED ITA NO. 1997/AHD /2015, THUS IN PARITY WITH THE SAID ORDER, APPEAL OF THE REVENUE IS DISMI SSED. 14. NOW WE COME TO ITA NO. 2002/AHD/2015 FOR A.Y. 2000- 2001, WHEREIN REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. 'WHETHER ON THE FACTS AND IN THE CIR CUMSTANCES OF THE CASE, THE LD. CIT (A) ERRED IN LAW AND ON FACTS IN DELETING PEN ALTY U/S. 271(L)(C) OF THE ACT ON THE ISSUE OF ADDITION REPRESENTING NON OPERATIVE AD VANCE MADE BY THE A.O., WITHOUT APPRECIATING THE FINDING IN THE MATTE R RECORDED BY THE A.O. IN THE ASSESSMENT ORDER AND IN ORDER U/S. 271(L)(C) OF THE ACT.' 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 15. SINCE IN SIMILAR FACTS AND CIRCUMSTANCES IN QUANTUM PROCEEDING, RELIEF WAS GRANTED BY AS IN ITA NO. 1997/AHD/2015 AND WE HAVE DISMISSED APPEAL OF THE REVENUE. THEREFORE, PENALTY PROCEEDING ARISING OUT OF THE DISMISSED APPEAL IS NOT SUSTAINABLE. THEREFORE, APPEAL FOR PENALTY O F THE REVENUE U/S. 271(1)(C) IS DISMISSED. 16. NOW WE COME TO ITA NO. 2003/AHD/2015 FOR A.Y. 2001- 2002, WHEREIN REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE, THE LD. CIT (A) ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE TH E ADDITION ON ACCOUNT OF NON ITA NOS. 199 7 TO 2008/AHD/2015 . A.YS. 1998- 99 TO 2003-04 9 OPERATIVE ADVANCE OF RS. 49,96,700/- WITHOUT APPREC IATING THE FACTS THAT IN ABSENCE OF ANY DETAILS FILED BY THE ASSESSEE, THE A .O. HAD NO OPTION BUT TO COME TO THE CONCLUSION OF ADDING THE SAME, SINCE CHEQUE RETURNED /DISHONOURED APPEARING IN BANK ACCOUNTS OF THE ASSESSEE REPRESEN TED NON OPERATIVE ADVANCES IN WHICH CASES U/S. 138 OF THE N.I. ACT HAS BEEN FI LED AND IS DISTINCT FROM THE ADDITION MADE ON THE BASIS OF CHEQUE CREDITS REPRES ENTING OPERATIVE ADVANCES I.E. ADVANCES IN WHICH CASE U/S. 138 OF THE N.I. ACT HAS NOT BEEN FILED.' 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEN D OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 17. SINCE IN SIMILAR FACTS AND CIRCUMSTANCES OF THE CAS E, WE HAVE DISMISSED THE APPEAL OF THE REVENUE IN CONNECTED ITA NO. 1997/AHD /2015, THUS IN PARITY WITH THE SAID ORDER, APPEAL OF THE REVENUE IS DISMI SSED. 18. NOW WE COME TO ITA NO. 2004/AHD/2015 FOR A.Y. 2001- 2002, WHEREIN REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. 'WHETHER ON THE FACTS AND IN THE CIR CUMSTANCES OF THE CASE, THE LD. CIT (A) ERRED IN LAW AND ON FACTS IN DELETING PEN ALTY U/S. 271(L)(C) OF THE ACT ON THE ISSUE OF ADDITION REPRESENTING NON OPERATIVE AD VANCE MADE BY THE A.O., WITHOUT APPRECIATING THE FINDING IN THE MATTE R RECORDED BY THE A.O. IN THE ASSESSMENT ORDER AND IN ORDER U/S. 271(L)(C) OF THE ACT.' 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 19. SINCE IN SIMILAR FACTS AND CIRCUMSTANCES IN QUANTUM PROCEEDING, RELIEF WAS GRANTED BY AS IN ITA NO. 1997/AHD/2015 AND WE HAVE DISMISSED APPEAL OF THE REVENUE. THEREFORE, PENALTY PROCEEDING ARISING OUT OF THE DISMISSED APPEAL ITA NOS. 199 7 TO 2008/AHD/2015 . A.YS. 1998- 99 TO 2003-04 10 IS NOT SUSTAINABLE. THEREFORE, APPEAL FOR PENALTY O F THE REVENUE U/S. 271(1)(C) IS DISMISSED.. 20. NOW WE COME TO ITA NO. 2005/AHD/2015 FOR A.Y. 2002- 2003, WHEREIN REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE, THE LD. CIT (A) ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE TH E ADDITION ON ACCOUNT OF NON OPERATIVE ADVANCE OF RS. 13,97,000/- WITHOUT APPREC IATING THE FACTS THAT IN ABSENCE OF ANY DETAILS FILED BY THE ASSESSEE, THE A .O. HAD NO OPTION BUT TO COME TO THE CONCLUSION OF ADDING THE SAME, SINCE CHEQUE RETURNED /DISHONOURED APPEARING IN BANK ACCOUNTS OF THE ASSESSEE REPRESEN TED NON OPERATIVE ADVANCES IN WHICH CASES U/S. 138 OF THE N.I. ACT HAS BEEN FI LED AND IS DISTINCT FROM THE ADDITION MADE ON THE BASIS OF CHEQUE CREDITS REPRES ENTING OPERATIVE ADVANCES I.E. ADVANCES IN WHICH CASE U/S. 138 OF THE N.I. ACT HAS NOT BEEN FILED.' 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEN D OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 21. SINCE IN SIMILAR FACTS AND CIRCUMSTANCES OF THE CAS E, WE HAVE DISMISSED THE APPEAL OF THE REVENUE IN CONNECTED ITA NO. 1997/AHD /2015, THUS IN PARITY WITH THE SAID ORDER, APPEAL OF THE REVENUE IS DISMI SSED. 22. NOW WE COME TO ITA NO. 2006/AHD/2015 FOR A.Y. 2002- 2003, WHEREIN REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. 'WHETHER ON THE FACTS AND IN THE CIR CUMSTANCES OF THE CASE, THE LD. CIT (A) ERRED IN LAW AND ON FACTS IN DELETING PEN ALTY U/S. 271(L)(C) OF THE ACT ON THE ISSUE OF ADDITION REPRESENTING NON OPERATIVE AD VANCE MADE BY THE A.O., WITHOUT APPRECIATING THE FINDING IN THE MATTE R RECORDED BY THE A.O. IN THE ASSESSMENT ORDER AND IN ORDER U/S. 271(L)(C) OF THE ACT.' ITA NOS. 199 7 TO 2008/AHD/2015 . A.YS. 1998- 99 TO 2003-04 11 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 23. SINCE IN SIMILAR FACTS AND CIRCUMSTANCES IN QUANTUM PROCEEDING, RELIEF WAS GRANTED BY AS IN ITA NO. 1997/AHD/2015 AND WE HAVE DISMISSED APPEAL OF THE REVENUE. THEREFORE, PENALTY PROCEEDING ARISING OUT OF THE DISMISSED APPEAL IS NOT SUSTAINABLE. THEREFORE, APPEAL FOR PENALTY O F THE REVENUE U/S. 271(1)(C) IS DISMISSED.. 24. NOW WE COME TO ITA NO. 2007/AHD/2015 FOR A.Y. 2003- 2004, WHEREIN REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE, THE LD. CIT (A) ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE TH E ADDITION ON ACCOUNT OF NON OPERATIVE ADVANCE OF RS. 55,19,000/- WITHOUT APPREC IATING THE FACTS THAT IN ABSENCE OF ANY DETAILS FILED BY THE ASSESSEE, THE A .O. HAD NO OPTION BUT TO COME TO THE CONCLUSION OF ADDING THE SAME, SINCE CHEQUE RETURNED /DISHONOURED APPEARING IN BANK ACCOUNTS OF THE ASSESSEE REPRESEN TED NON OPERATIVE ADVANCES IN WHICH CASES U/S. 138 OF THE N.I. ACT HAS BEEN FI LED AND IS DISTINCT FROM THE ADDITION MADE ON THE BASIS OF CHEQUE CREDITS REPRES ENTING OPERATIVE ADVANCES I.E. ADVANCES IN WHICH CASE U/S. 138 OF THE N.I. ACT HAS NOT BEEN FILED.' 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEN D OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 25. SINCE IN SIMILAR FACTS AND CIRCUMSTANCES OF THE CAS E, WE HAVE DISMISSED THE APPEAL OF THE REVENUE IN CONNECTED ITA NO. 1997/AHD /2015, THUS IN PARITY WITH THE SAID ORDER, APPEAL OF THE REVENUE IS DISMI SSED. ITA NOS. 199 7 TO 2008/AHD/2015 . A.YS. 1998- 99 TO 2003-04 12 26. NOW WE COME TO ITA NO. 2008/AHD/2015 FOR A.Y. 2003- 2004, WHEREIN REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. 'WHETHER ON THE FACTS AND IN THE CIR CUMSTANCES OF THE CASE, THE LD. CIT (A) ERRED IN LAW AND ON FACTS IN DELETING PEN ALTY U/S. 271(L)(C) OF THE ACT ON THE ISSUE OF ADDITION REPRESENTING NON OPERATIVE AD VANCE MADE BY THE A.O., WITHOUT APPRECIATING THE FINDING IN THE MATTE R RECORDED BY THE A.O. IN THE ASSESSMENT ORDER AND IN ORDER U/S. 271(L)(C) OF THE ACT.' 2. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 27. SINCE IN SIMILAR FACTS AND CIRCUMSTANCES IN QUANTUM PROCEEDING, RELIEF WAS GRANTED BY AS IN ITA NO. 1997/AHD/2015 AND WE HAVE DISMISSED APPEAL OF THE REVENUE. THEREFORE, PENALTY PROCEEDING ARISING OUT OF THE DISMISSED APPEAL IS NOT SUSTAINABLE. THEREFORE, APPEAL FOR PENALTY O F THE REVENUE U/S. 271(1)(C) IS DISMISSED.. 28. IN THE RESULT, ALL 12 APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 21- 02- 2020 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 21/02/2020 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD